Boss must pay for poisoning employee

A judge hands down the first-ever conviction for knowingly exposing an employee to hazardous waste

SODA SPRINGS, Idaho - Scott Dominguez once loved to ski, play hackysack, hunt and fish. No more. An accident at work severely damaged his brain and left him with little muscle control. His careful movements are a testament to the strength of his will; without it, doctors say, he might not move at all.

"I really miss out on everything that I used to be able to do," says Dominguez, 24, in slow, halting speech.

In a precedent-setting case, the Justice Department has prosecuted Allan Elias for sending Dominguez to clean a tank full of sulfuric acid and cyanide. It's been nearly four years since the accident, and the appeals process has been lengthy, but in May 1999, Elias, 61, was convicted of "knowing endangerment" to Dominguez. Not until this April 28 will a federal judge sentence Elias; he faces up to 30 years in prison and a $6 million fine.

The steel tank Dominguez went to clean belonged to Elias' business, Evergreen Resources Inc., based in Soda Springs. In a year, the company turns nearly 900,000 tons of hazardous waste into fertilizer.

When Elias asked Dominguez and another employee, Daren Weaver, to scour the 11-foot-high, 36-foot-long tank, they entered a 22-inch hole at its top, then dangled from a waist harness and rope, to clean out the chemical sludge with a fire hose and push broom.

"They were told to simply dump the tank's waste right on the ground outside," says Bob Wojnicz, an EPA agent who investigated the accident for the Justice Department. "Dominguez was unaware that the greenish-gray, heavily crusted material contained a poisonous gas."

The Occupational Safety and Health Administration rules require that employers keep a cyanide antidote kit on site, and that when cleaning waste tanks like these, workers dress in special protective clothing. According to Wojnicz, Elias broke both regulations.

After a few hours passed, as the men stirred up the sludge, the fumes intensified, producing the same chemical compound that the Nazis used to kill concentration camp victims, says the EPA investigator.

Weaver turned to Dominguez and asked if he smelled anything funny, recounts Wojnicz. The men decided the fumes had become too strong, and began climbing a ladder to escape the tank. Weaver managed to climb out, collapsing outside, but according to employees who had gathered around outside the tank, Dominguez struggled half-way up the ladder, then fell back six feet into the toxic mess.

Wojnicz says that while someone called 911, another employee climbed into the tank and pulled Dominguez partly out of the sludge before he was almost overcome by the fumes himself.

"Scott was dead weight by then," Wojnicz says. "As soon as you come in contact with that gas, it immediately begins to deprive your body of oxygen, even if you hold your breath."

When an ambulance arrived, rescuers soon discovered the opening at the top of the tank was too small for equipment or emergency workers to fit through. Instead, they cut a hole in the side of the tank to reach Dominguez.

The rescue had taken nearly an hour. Treatment, experts said in court, was delayed because Elias wouldn't identify the tank's contents as cyanide.

A suspect sludge

"Elias was the only person at the site that knew the contents of the tank," says David M. Uhlmann, a prosecutor in the case and an attorney with the Environmental Crimes division of the U.S. Department of Justice. "Yet he lied repeatedly to rescuers and doctors about what was in the tank and what might be affecting Scott." According to Uhlmann, it wasn't until hours later, in the Soda Springs hospital, when Dominguez responded positively to cyanide treatments, that investigators began to suspect this was more than just a tragic accident.

"It's hard to imagine a more persistent and more egregious violation of our laws enacted to protect the environment and employees than the one committed by Allan Elias," says U.S. District Judge Lynn Winmill, who will sentence Elias. "His conduct has just been outrageous. He's displayed some pretty horrific behavior considering what he's done to Scott Dominguez and his family."

The case is the only time the federal Justice Department prosecuted an employer for knowingly exposing an employee to hazardous waste.

Elias, however, contends that what happened four years ago was simply a "freak accident." According to his attorney, Craig Jorgensen, Elias never sent Dominguez into the tank and therefore cannot be responsible for causing his severe brain damage.

"There's no management of stupidity," Elias told EPA agent Joe Hildorfer, apparently blaming his employees. Both Elias and his attorney refused to comment about the case since Elias' conviction.

Despite the challenges of the last three years, Dominguez's mother, Jackie Hamp, says the family has begun to grapple with his disability, and Scott Dominguez remains surprisingly positive.

But thinking back to his life before the day of the accident, Dominguez's easy laughter and wide smile disappear, and the tears still well up. Whatever settlement he receives, he says, doesn't matter. "It can't restore my health. I don't think anything will replace that."

Kurt Friedemann lives in Pocatello, Idaho, where he writes for the Idaho State Journal.